Monthly Archives: November 2015

“Democratic AG’s Group Avoids Contempt, Files In Arizona As “Political Committee” …From 2010″

Arizona’s Politics:

In advance of a contempt hearing today, the national Democratic Attorneys General Association (“DAGA”) gave in and registered their blandly-named 2010 Arizona “Committee For Justice & Fairness” (“CJF”) as a “political committee” with the Secretary of State’s Office. The finance reports also filed showed no surprises, although AZ Secretary of State Michele Reagan had expressed hope they would.

The filings represent one of the final chapters in a five-year book that began with vicious attacks against the soon-to-be Attorney General Tom Horne by a group of Attorneys General trying to remain undercover. It then became a stretched-out legal battle over whether Arizona law was tough enough to force the group to file.

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Sheldon Silver Convicted of Political Corruption, But Will the Conviction Stand?


Sheldon Silver, an assemblyman who rose from the Lower East Side to become one of New York State’s most powerful politicians, was found guilty on Monday in a federal corruption trial, ending a case that was the capstone of the government’s efforts to expose the seamy culture of influence peddling in Albany.

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#SCOTUS: What’s Next in the Hawaii Election Case Whose Vote Counting Justice Kennedy Enjoined Friday?

As I reported on Friday, Justice Kennedy, in his capacity as Circuit Justice for the Ninth Circuit, has enjoined the counting of ballots in an upcoming election in which only those with Native Hawaiian ancestry may vote. Adam Liptak reported for the NY Times on the case, and I pondered whether the order itself might affect voting, which concludes today. (After all, a person should be less likely to vote if he or she believes it is fairly likely the votes will never be counted.)

As I noted in an update to my original post, and as Lyle Denniston noted in his post at SCOTUSBlog, Justice Kennedy’s order hinted at further action.  It reads: “IT IS ORDERED that the respondents are enjoined from counting the ballots cast in, and certifying the winners of, the election described in the application, pending further order of the undersigned or of the Court.” Lyle writes: “Because of the holiday weekend, it may be that the full Court will consider the matter further when the Court returns to public sessions next Monday.  In the meantime, the cast ballots may not be opened for counting and the outcome cannot be certified officially.”

The Court’s docket shows the briefing on the emergency application is complete, but Justice Kennedy’s order contemplates a further order. I expect within a few days we will get another order from the entire Court, with the holiday weekend over. Justice Kennedy’s order seemed intended to keep the status quo (but I think it actually could be affecting voting). It would not surprise me to see Justice Kennedy’s order extended, and perhaps even the case set for full briefing and argument, although the Court may keep the stay in place and give the Ninth Circuit the first crack at a full decision in this case. Sooner or later, though, I expect the Court will address the merits in this fascinating and important case.

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#SCOTUS Rejects Another Challenge to Campaign Finance Disclosure and Disclaimer Rules

AP report on today’s cert. denial in a campaign finance case out of Hawaii. (Here is the cert. petition from Jim Bopp.) As I wrote in my earlier coverage of this case:

A important unanimous decision by Judge Fisher (joined by Kozinski and Watford) in the 9th Circuit as a challenge to the federal contractor ban remains pending. The 9th Circuit held the ban satisfied exacting scrutiny, even after McCutcheon, and even though it is a ban, rather than a limit on contributions, citing the danger of pay to play.

The bulk of the opinion also upheld a variety of reporting, disclaimer, and disclosure requirements required by Hawaii law. And the court included dicta affirming the special importance of disclosure in the Citizens United era:

Although not directly relevant to A-1’s challenge – because A-1’s political activities are self-financed and it receives no contributions – we also note the heightened importance of noncandidate committee disclosure requirements now that the limit on contributions to noncandidate committees has been permanently enjoined. A single contributor may provide thousands of dollars to independent committees, and yet avoid disclosing its identity if the committee makes all the expenditures itself. The noncandidate committee definition acts to ensure that the contributor’s identity will be disclosed to the voting public. Hawaii’s efforts to provide transparency would be incomplete if disclosure was not required in such circumstances.

The opinion is in A-1 A-Lectrician v. Snipes.


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Ned Foley Stocking Stuffer

What do you give the election law nerd who has everything?

I’d suggest Ned Foley’s new book, Ballot Battles. I’ve read this in draft and I highly recommend it to anyone who wants to know how we’ve handled close and crucial elections throughout the Nation’s history.  It didn’t start (nor will it end) with Bush v. Gore.

Ned will be guest blogging soon about his great book. It is careful, scholarly, and entertaining.

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Must-Read Nick Confessore on Money in Illinois Politics in the Citizens United Era

Deep dive in the New York Times on the rise of our emerging plutocracy and the lack of capacity of campaign finance laws to deal with it:

The families remaking Illinois are among a small group around the country who have channeled their extraordinary wealth into political power, taking advantage of regulatory, legal and cultural shifts that have carved new paths for infusing money into campaigns. Economic winners in an age of rising inequality, operating largely out of public view, they are reshaping government with fortunes so large as to defy the ordinary financial scale of politics. In the 2016 presidential race, a New York Times analysis found last month, just 158 families had provided nearly half of the early campaign money.

Many of those giving, like Mr. Griffin, come from the world of finance, an industry that has yielded more of the new political wealth than any other. The Florida-based leveraged-buyout pioneer John Childs, the private equity investor Sam Zell and Paul Singer, a prominent New York hedge fund manager, all helped elect Mr. Rauner, as did Richard Uihlein, a conservative businessman from the Chicago suburbs.

Most of them lean Republican; some are Democrats. But to a remarkable degree, their philosophies are becoming part of a widely adopted blueprint for public officials around the country: Critical of the power of unions, many are also determined to reduce spending and taxation, and are skeptical of government-led efforts to mitigate the growing gap between the rich and everyone else….

To bring about a revolution in the Illinois Capitol, in Springfield, Mr. Rauner and his allies have created what amounts to a new campaign economy, in which union money has long been the financial lifeblood of both parties. Contributing millions to his own campaign, Mr. Rauner triggered a state law that removes limits on campaign contributions when a wealthy candidate spends heavily on his or her own race.

The law, intended to limit the influence of the wealthy by providing a level playing field, had the opposite effect: Freed of the restraints, supporters of Mr. Rauner poured millions more into his campaign, breaking state records. About half of the $65 million he spent through last year’s election came from himself and nine other individuals, families or companies they control. Mr. Quinn, the incumbent, spent about $32 million, with many unions making mid-six-figure contributions.

Mr. Rauner’s biggest donor was Mr. Griffin, who gave $5.5 million and put his private plane at Mr. Rauner’s disposal. Mr. Rauner’s allies spent millions on political advocacy groups, research organizations and party committees. The Chicago Sun-Times reversed its no-endorsement policy to back Mr. Rauner, who was a part-owner of the paper before he ran for governor.
“He didn’t have to play by the same rules as other candidates,” said Bill Hyers, the chief strategist to Mr. Quinn. “He just kept on spending.”

Never before in modern Illinois politics had so few people provided so much of the money for campaigns. The size of the average contribution in last year’s general election almost tripled over those made in the previous governor’s race, according to a Times analysis of campaign records collected by Illinois Sunshine, a project of the Illinois Campaign for Political Reform….
Around the same time that Mr. Rauner began running for governor, a group of researchers based at Northwestern University published findings from the country’s first-ever representative survey of the richest one percent of Americans. The study, known as the Survey of Economically Successful Americans and the Common Good, canvassed a sample of the wealthy from the Chicago area. Those canvassed were granted anonymity to discuss their views candidly.

Their replies were striking. Where merely affluent Americans are more likely to identify as Democrats than as Republicans, the ultrawealthy overwhelmingly leaned right. They are far more likely to raise money for politicians and to have access to them; nearly half had personally contacted one of Illinois’s two United States senators.

Where the general public overwhelmingly supports a high minimum wage, the one percent are broadly opposed. A majority of Americans supported expanding safety-net and retirement programs, while most of the very wealthy opposed them. And while Americans are not enthusiastic about higher taxes generally, they feel strongly that the rich should pay more than they do, and more than everyone else pays.

“Probably the biggest single area of disconnect has to do with social welfare programs,” said Benjamin I. Page, a political scientist at Northwestern University and a co-author of the study. “The other big area has to do with paying for those programs, particularly taxes on high-income and wealthy people.”

Illinois, Mr. Page added, is “a case study of the disconnect in action — between what average citizens want the government to do and what it does.”

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“Donors gave a super PAC $6 million. Candidates actually got about $140,000.”


Before he entered the race for the White House, Ben Carson signed on to a campaign to raise money to fight Obamacare. When Juanita McMillon saw his name, she was eager to get out her checkbook.

“I think he is sincere, and I think he is honest, and I think he is exactly what we need,” said McMillon, 80, from the small town of De Kalb in northeast Texas. She gave $350.

Her money went to the American Legacy PAC, an organization with ties to former House Speaker Newt Gingrich. With Carson as the face of its Save Our Healthcare campaign, American Legacy raised close to $6 million in 2014 — and spent nearly all of it paying the consultants and firms that raised the money. Just 2% was donated to Republican candidates and committees, financial reports show.

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BIG Campaign Finance News: La. GOP Soft Money Lawsuit Gets 3-Judge Court, Likely Ticket to SCOTUS

I know it is late on Friday, the day after Thanksgiving, but here’s some very big news. It sounds technical, but it really, really matters.

A federal district court has held that the Louisiana GOP, under the guidance of tenacious campaign finance lawyer Jim Bopp, has the right to have a challenge to McCain-Feingold’s soft money ban applied to state parties through a three-judge court. Getting there took some very clever drafting, as the court recognized:

Close observers of the campaign-finance arena may be experiencing twinges of déjà vu. Last year, these same plaintiffs, represented by the same counsel, were among those who mounted similar challenges to the soft-money ban before this Court. See Rufer v. FEC, 64 F. Supp. 3d 195 (D.D.C. 2014); RNC v. FEC (“RNC II”), No. 14-cv-00853 (D.D.C. Aug. 19, 2014). This Court declined to convene a three-judge court to hear those challenges. While the Court found that the plaintiffs had presented “substantial, non-frivolous” constitutional claims, it concluded they lacked standing to bring those claims before a three-judge court because their central alleged injury—being prevented from accepting unlimited contributions to fund “independent” election activity—could have been redressed only by invalidating the longstanding base party contribution limits in FECA. Rufer, 64 F. Supp. 3d at 198. BCRA three-judge courts, however, are empowered to decide only constitutional challenges to provisions of BCRA itself. Id. Having been deprived of a direct ticket to the Supreme Court, the Rufer and RNC II plaintiffs abandoned their appeal of the Court’s ruling, and at least some of them regrouped to fight another day.

That day has now come, and the Court is again presented with the same two questions: Are Plaintiffs’ constitutional claims substantial, and are their alleged injuries redressable by a BCRA three-judge court? The Court this time answers yes to both. As in Rufer and RNC II, Plaintiffs have presented substantial constitutional claims. While the Supreme Court has twice upheld BCRA’s soft-money ban, and recently affirmed that it is still intact, its ruling in McCutcheon created widespread uncertainty over the central question presented here: whether truly independent campaign expenditures by political parties—if there can be such a thing—pose the type of corruption risk that the Supreme Court has held is necessary to justify limiting federal election spending. Given this uncertainty, Plaintiffs’ claims cannot be fairly characterized as “frivolous,” “obviously without merit,” or “so foreclosed by” Supreme Court precedent that there is “no room for the inference that the question sought to be raised can be the subject of controversy.” Feinberg v. FDIC, 522 F.2d 1335, 1339 (D.C. Cir. 1975) (quoting Ex parte Poresky, 290 U.S. 30, 32 (1933)).

But unlike in the prior cases, the Court concludes that Plaintiffs here have standing to present their claims to a three-judge court. The core injury alleged by the Rufer and RNC II plaintiffs could not have been redressed without striking down FECA’s base limits, which a BCRA three-judge court may not do. Assiduously avoiding a frontal assault on the base limits, Plaintiffs here re-characterize their injury as simply being prevented from spending funds from state-party-committee accounts on federal election activity, without regard to the FECA base limits. Make no mistake, a ruling for Plaintiffs on the merits would render largely meaningless FECA’s limits on contributions to state- and local-party committees: Depending on the contribution limits in the relevant state, if any, an individual or corporation would be able to contribute sums in excess of the existing FECA-imposed federal limits to a state party, and the party could then deposit those funds in a state account and use them to engage in “independent” federal election activity on a scale that would be impossible under existing law. Plaintiffs have nevertheless established standing because, technically speaking, the relief they seek can be achieved by invalidating BCRA’s soft-money ban while leaving FECA’s base limits in place. Clever indeed, but not too clever by half as the FEC suggests. The Court will, accordingly, grant Plaintiffs’ motion to convene a three-judge district court to hear their claims as required by BCRA § 403.

Why are the stakes so high?  I explained it in August in The McCain-Feingold Law May Doom Itself, National Law Journal, Aug. 16, 2015:

Tucked within the Bipartisan Cam­paign Reform Act (the formal name for “McCain-Feingold”) is a provision requiring that certain constitutional challenges to the law be heard by a three-judge court, with direct appeal to the U.S. Supreme Court. This special jurisdictional provision makes it much more likely that within the next few years the Supreme Court will strike limits on the amounts people and entities can contribute to the political parties in so-called party soft money.

If the court does so, it would be knocking down the second of McCain-Feingold’s two pillars. The court knocked down the first pillar—the limits on corporate and union spending—in the 2010 case Citizens United v. Federal Election Commission.

It may seem hard to believe that procedural rules for court challenges could make a difference as to the fate of campaign financing in the United States, but it matters. When a case comes up to the Supreme Court through the normal process of federal district court or state court decision followed by appellate court review, the losing side files a petition for writ of certiorari.

A Supreme Court decision to deny certiorari has no precedential value; no one can cite a certiorari denial as proof the Supreme Court believes the lower court got it right.

But in a rare set of cases (these days confined to certain campaign finance, redistricting and voting-rights cases) pursuant to federal statute are heard initially by a three-judge federal district court with direct appeal to the Supreme Court. In these cases, a court decision to affirm a three-judge court or to dismiss the appeal does count as a decision that the lower court got right, even if not necessarily for its reasoning. This fact makes it much more likely that the Supreme Court will hear such cases.

Justices have said the ­jurisdictional provision matters.

Since I wrote this oped, Chief Justice Roberts at the oral argument in Shapiro v. McManus has confirmed his feeling of the obligation to take three-judge court cases:

 CHIEF JUSTICE ROBERTS:  I mean, the other alternative is it’s a three-­judge district court, and then we have to take it on the merits.  I mean, that’s a serious problem because there are a lot of cases that come up in three-judge district courts that would be the kind of case –­­ I speak for myself, anyway– ­­ that we might deny cert in, to let the issue percolate.  And now with the three­-judge district court, no, we have to decide it on the merits…


As I concluded in my August oped:

The Roberts Court has proved itself quite deregulatory in campaign-finance cases. It has struck down or narrowed severely every campaign-finance limit it has ever considered. Further, in the 2014 McCutcheon case, Roberts suggested a soft money ban is unconstitutional.

But the court has also proven itself willing to not hear every campaign-finance case to come its way. Twice, for example, it turned down certiorari petitions testing whether the ban on direct campaign contributions by corporations violates the First Amendment. In 2010, over the dissents of justices Anthony Kennedy, Antonin Scalia and Clarence Thomas, it turned down a certiorari petition in yet another case Republicans brought to challenge the soft-money rules

If the Republican Party of Louisiana is able to convince the courts this time that the three-judge court is the appropriate route to hear its soft-money challenge, then there’s a good chance the court will not only take the case, but will strike down what remains of McCain-Feingold.

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